UNIVERSAL CHURCH OF THE KINGDOM OF GOD IN SOUTH AFRICA ( THE CHURCH )

Transcription

1 1 CASE NUMBER: 31/2013 DATE OF HEARING: 30 JULY 2013 JUDGMENT RELEASE DATE: 20 SEPTEMBER 2013 UNIVERSAL CHURCH OF THE KINGDOM OF GOD IN SOUTH AFRICA ( THE CHURCH ) COMPLAINANT vs SABC3 RESPONDENT TRIBUNAL: PROF KOBUS VAN ROOYEN SC (CHAIRPERSON) PROF HENNING VILJOEN (DEPUTY CHAIRPERSON) DR LYNDA GILFILLAN ADV BOITUMELO MMUSINYANE DR LINDA VENTER FOR THE COMPLAINANT: Adv P Louw SC briefed by Mario Martins, Attorney. RESPONDENT: Fakir Hassen: Manager Broadcasting Compliance assisted by Veronica Barnard: Compliance Officer, Broadcasting Compliance, accompanied by Busisiwe Ntuli, Executive Producer and Richelle Seton-Rogers, Senior Producer, Special Assignment. Defamation implied by inclusion of visuals of Complainant s buildings in programme dealing with alleged crime - Universal Church of the Kingdom of God in South Africa vs SABC3, Case No: 31/2013(BCCSA) SUMMARY A complaint was received from the Universal Church of the Kingdom of God in South Africa ( the Church ) that its reputation had been impaired owing to the use of visual

2 2 inserts in the regular SABC3 discussion and investigation programme, Special Assignment. The purpose of the programme was to report on churches and clergy who are involved in crimes such as money laundering and who are involved in the illegal drug trade. Neither the Complainant Church nor any of its clergy were mentioned by name in the programme, and no verbal link was drawn between the Church and the illegal conduct reported in the programme. However, a number of visual inserts showed recognisable premises of the Church that are used for worship, and the heart/dove symbol and name of the Church were clearly visible in at least one instance. The visual inserts identify the premises as those of the Church, among these being the Church premises in the Johannesburg CBD, as well as premises in Rosettenville. Held that the inclusion of visuals of the Church clearly implied that its officials were also criminals, or that a suspicion of such conduct exists in regard to the Church. This prima facie amounted to defamation, unless it was the truth and it was in the public interest to reveal it, alternatively that it was reasonable to have included the visuals. The matter of truth was not part of the SABC3 s defence. SABC3 could also not show that the inclusion was reasonable. Held that the visuals implied complicity in crime, and the producers of the programme should either have excluded the material or obtained a response from the Church. There was also no evidence that the Church had been or is involved in crime, and SABC3 should therefore have excluded the visuals. Held, in the result, that the Church had been defamed. The defamation was not intentional. However, negligence suffices for a finding of defamation in so far as the media is concerned. In essence, SABC3 should have done more to ensure that also the visuals of the Church which the producers included in the programme were, indeed, related to criminal acts or alleged criminal acts. SABC3 had not been able to show that this was the case in regard to the Complainant. In fact, no attempt was made at the hearing to do so. The argument was simply that there was no intention to involve the Complainant. As indicated, however, absence of intention is not a defence. A contravention of the Broadcasting Code was, accordingly, found and SABC3 directed to broadcast a correcting statement and a summary of the finding of the BCCSA, as set out at the end of the judgment. JCW VAN ROOYEN SC JUDGMENT [1] A complaint was received from the Universal Church of the Kingdom of God in South Africa ( the Church ) that its reputation had been impaired owing to the use of visual

3 3 inserts in the regular SABC3 discussion and investigation programme, Special Assignment. I referred the matter to a Tribunal for a hearing and judgment. [2] The Church is an international church. It was originally established in Brazil to spread the Christian message and to promote religious, charitable, educational, philanthropic and benevolent activities. The Church is internationally constituted by its presbytery, which is made up of bishops appointed as spiritual leaders in their designated countries. In South Africa, it has its main base in Johannesburg. The Church has some congregants in South Africa. It conducts regular church services in its cenacles, which are meeting places and churches. It is well-known throughout South Africa. Here and elsewhere in the world, the Church employs a symbol consisting of a red heart with a white dove, by means of which it is recognised. [3] On 23 May 2013, the Respondent broadcast an investigative programme on its SABC3 television channel, which was called Praise the Drug Lord. The purpose of the programme was to report on churches and clergy who are involved in crimes such as money laundering and who are involved in the illegal drug trade. It also set out to report on churches that do not comply with South African laws and regulations, and which, in particular, are not registered with the South African Revenue Service. During the course of the programme, it was stated that alleged drug-related offences that have been committed by various churches and clergy have been investigated and reported to the relevant authorities. Neither the Church nor any of its clergy are mentioned by name in the programme, and no verbal link is drawn between the Church and the illegal conduct reported in the programme. However, a number of visual inserts show recognisable premises of the Church that are used for worship, and the heart/dove symbol and name of the Church are clearly visible in at least one instance. The visual inserts identify the premises as those of the Church, among these being the Church premises in the Johannesburg CBD, as well as premises in Rosettenville. [4] In the light of the above, Mr Louw argued, on behalf of the Church, that a clear link was forged between the criminal behaviour and immoral conduct that was the subject matter of the insert, and the Church. The visuals, it was argued, left the reasonable

4 4 viewer with no doubt that the Church is involved in serious crimes, and also in the immoral conduct reported on in the programme. The link forged in the insert by the visuals of the Church premises and the crimes and immoral conduct reported on, is false and devoid of any truth, according to the Church; the Church is, indeed, duly registered with SARS as well as relevant government departments. All its financial transactions, including international transactions, are conducted in terms of the laws of this country. In short, it was argued, the Church complies with all the laws of South Africa that apply to it and its activities; it was argued furthermore that false inferences may be drawn from the screening of visuals of the Church premises and the symbol and name of the Church, to the effect that the Church does not comply with the laws and regulations of this country. A clear inference may be drawn from the programme that the Church is dishonest. This is also false. In conclusion, it was argued that the Respondent knew, or ought reasonably to have known, that the said implications are false, but it nevertheless broadcast the programme. The Respondent did not seek to obtain any comment from the Church on the said link and the implication. In conclusion, it was argued that the broadcast of the programme was wrongful; it infringed on the Complainant s good name and on its dignity; it was also in breach of the Church s constitutional right to privacy. [5] It was further argued that, given the fact that the implied involvement of the Church in criminal activities amounted to a matter of public importance, SABC3 should, at least, have approached a representative of the Church so as to obtain a response. It is not necessary to deal with this complaint, since the matter can be resolved with reference to defamation. The latter approach will also be followed in regard to the complaint that the dignity and privacy of the Church were impaired. The same set of facts can lead to only one finding against a broadcaster, in terms of the Broadcasting Code, otherwise the rule against duplicity of charges would be violated. [6] The Broadcaster responded as follows: 1. The complainant admits in its submission that Neither the Church nor any of its ecclesiastics are mentioned by name in the programme and no verbal link is drawn between the Church and the crimes and conduct reported on in the programme. This alone should render this complaint invalid, as this is absolutely correct and there can therefore not be further assumptions that there had been offence caused to the complainant.

5 5 2. The complainant however continues this assumption of offence on the basis that its church building was shown in the visuals used in the programme and that therefore its constituency will assume that the church is guilty of dealing in drugs. It is true that we used visuals of the church, as was also the case with a wide range of other church buildings. This was done because the subject matter was a religious one, and specifically of Christian churches. There was no selective identification of or statement made that any of the churches shown were involved in drug peddling. 3. The pastor shown in the video clips as being involved in drug peddling was clearly identified as belonging to a church other than that of the complainant, so there was no link drawn there either to the complainant s church or any of the others shown in the visuals. We therefore submit that contrary to the view expressed by the complainant, that no reasonable viewer would make the assumption that the complainant s church or any of the others shown are involved in drug peddling or serious crimes and immoral conduct. We submit that there has been no transgression of the Code. EVALUATION [7] At the core of the present matter lies the omission of the Respondent to ensure that it limited its portrayal of allegedly criminal acts taking place within certain churches and by their clergy, as well as the accusations leveled against such churches, to those churches which could truthfully or reasonably be shown to have been involved in crime. It included, by implication, visuals of the church of the Complainant, without the SABC being able to show, either in the programme itself or at the hearing of this matter, that the Complainant was also involved in the alleged crimes. The correct manner in which this very serious implication of being involved in crime should have been addressed, was either to have approached a representative of the Church for his or her reaction, or to have excluded the Complainant from any mention, including visual mention, in the programme. The argument that the programme alerted members of the relevant congregation to establish whether their church may not indeed be involved in criminal activity, is not a defence. Any implication of criminal behaviour, such as the one in the programme, cannot be justified, except where the implication of criminal activity can be shown to have been justified on the basis of truth and public interest or reasonableness of the implication see this Tribunal s judgment in Naicker v Radio 702 and Another 1 and that of the Supreme Court of Appeal in Mthembi- Mahanyele v Mail & Guardian Ltd & Another. 2 1 Case 26/2012. Naicker v 94.7 Highveld Stereo and Another [2012] JOL (BCCSA) (6) SA 329(SCA).

6 6 [8] The inclusion of visuals of the Church, as described in the complaint, clearly implied that its officials are also criminals, or that a suspicion of such conduct exists in regard to the Church. This prima facie amounted to defamation, unless it was the truth and it was in the public interest to reveal it. The matter of truth was not part of SABC3 s defence. The next question is whether the conduct was reasonable. The only explanation given was that nothing untoward was said, that other church buildings were also included, that the pastor shown was clearly identified and was not in the services of the Complainant, and, furthermore, that the programme effectively made a call on members of churches to ask questions of their religious leaders. Lastly, regarding the issue that the broadcast was limited to visuals, and that the Church was not directly implicated in the commentary, and was, in effect, merely included by way of visual background to the programme, we do not believe that this explanation exonerates the SABC on the grounds of reasonableness as set out by the Supreme Court in Mahanyele s case. Also compare what Brand AJ stated in Le Roux v Dey. 3 It is no defence to a complaint of defamation to argue that nothing was actually said in regard to the Church. The visuals imply complicity in crime, and the producers of the programme should either have excluded the material or obtained a response from the Church. There is no evidence before us that the Church is, or has ever been, involved in crime, and SABC3 should therefore have excluded the visuals. [9] In the result it is found that the Church was defamed. The defamation was not intentional. However, negligence suffices for a finding of defamation in so far as the media is concerned. In essence, SABC3 should have done more to ensure that material which the producers included in the programme was, indeed, related to criminal acts or alleged criminal acts. The SABC3 has not been able to show that this was the case in regard to the complainant. In fact, no attempt was made at the hearing to do so. The argument was simply that there was no intention to involve the Complainant. As indicated, however, absence of intention is not a defence. [10] In so far as sanction is concerned, the Complainant argued that the Commission should not only direct SABC3 to broadcast a correction, but that it should also 3 Le Roux and Others v Dey (Freedom of Expression Institute and Restorative Justice Centre as Amici Curiae) 2011 (3) SA 274 (CC) at paras [122]- [124].

7 7 apologise. Mr Hassen, on behalf of the SABC, argued that it would be sufficient if the BCCSA directed it to broadcast a statement which stated that the Broadcasting Code had been contravened in that it had defamed the Church, though the SABC3 had not done so intentionally. In a well-reasoned exposition of the development of an apology as part of the common law, Mr. Louw, for the Church, argued that the Commission should order an apology, and that this was justified not only by common law, as developed, but also by the wording of the sanction paragraph in the BCCSA s Constitution. He also referred us to a few judgments where an apology was included implicitly or explicitly. 4 We have come to the conclusion that the circumstances of the present matter do not justify an apology, even if the ordering of an apology were to be part of the Constitution of the BCCSA. 5 A mistake had been made by including the visuals as described in the judgment, and that amounted to defamation, for which negligence is sufficient. The breach was, however, not of such a severe nature that it would have justified an apology, even if we had decided that an apology was implicitly permitted, whether by common law in terms of section 39 of the Constitution of the Republic or by interpretation of the BCCSA Constitution. The complaint is upheld and SABC3 is directed to broadcast, before the end of October 2013, the following statement, during the first five minutes of a Special Assignment programme (of which at least two work days notice must be given to the BCCSA and the attorneys of the Church): On 23 May 2013 Special Assignment broadcast a programme under the name Praise the Drug Lord, which alleged that certain pastors use their positions to hide their involvement in drugs or money laundering. As part of that programme, certain visuals of the Universal Church of the Kingdom of God in South Africa were included as background. The Broadcasting Complaints Commission of South Africa has found that, by showing visuals of its premises, the programme imputed that there was a link between certain serious crimes and the Universal Church of the Kingdom of God of South Africa. 4 Cornerstone Church & Others v SABC1 (case 19/2004) 5 As was accepted in Cornerstone (supra) without any discussion of the legal issue as to whether the Constitution of the BCCSA implicitly includes the ordering of an apology.

8 8 The BCCSA held that the imputation was defamatory of the Church and that the SABC3 had been in breach of the Code of Conduct for Free-To-Air Broadcasters. The Tribunal also found that the imputation of a link between criminal behaviour alleged and the Church, was not borne out by the facts. SABC3 made it clear to the Commission that it did not intend to imply in any way that the Universal Church of the Kingdom of God was involved in drug dealing or any other crime and that it had not intended to create that impression with viewers. The BCCSA accepted this explanation. However, it also held that SABC3 should have taken steps to avoid a situation where viewers could reasonably have come to such a conclusion. JCW VAN ROOYEN SC CHAIRPERSON Commissioners Viljoen, Gilfillan, Mmusinyane and Venter concurred with the judgment of the Chairperson.